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In Jefferson v. Amsted Rail Co., No. 18-2620-KHV (D. Kan. Apr. 6, 2020), Kansas District Judge Kathryn H. Vratil, in a case where the defendant had filed five motions in recent months due to failure on the part of the pro se plaintiff to adhere to her discovery obligations, ruled that each of the five Ehrenhaus factors used to determine whether to order dismissal as a sanction “weighs in favor of dismissal” and dismissed the plaintiff’s claims with prejudice, adopting the recommendation of the magistrate judge.

Case Background

In this discrimination case against the defendant alleging violations of Title VII of the Civil Rights Act and the Americans with Disabilities Act, the plaintiff had several failures to adhere to her discovery obligations, including:

• Failing to submit a settlement report by April 12, 2019 as directed by U.S. Magistrate Judge James P. O’Hara.
• Failing to respond to defendant’s interrogatories, requests for production of documents and requests for admission by the due date of May 6, which forced the defendant to file a motion to compel discovery on June 11.  On June 14, plaintiff sent deficient responses (physical documents) to defendant’s discovery requests, and she did not respond to defendant’s motion to compel.
• Failing to comply with Judge O’Hara’s order to address the deficiencies in her interrogatory responses and admission requests and, by July 10, to fully respond to the requests for production of documents by “producing no more than a handful of documents and not adequately supplementing her interrogatory responses”.
• Failing to respond to defendant’s second motion to compel and for sanctions, filed on July 12, causing Judge O’Hara to grant defendant’s Second Motion To Compel and order that plaintiff supplement her discovery responses by August 6.  Although the plaintiff produced documents and emails that were responsive to defendant’s prior discovery requests during her August 8 deposition, while she indicated that she had additional responsive documents, she never produced them, and she did not supplement her interrogatory responses.
• Violated Judge O’Hara’s order by failing to participate in the drafting or submission of a proposed pretrial order due by August 23.  This was after the defendant filed a Motion For Sanctions, which asked the Court to dismiss plaintiff’s claims with prejudice or, in the alternative, order attorney’s fees because plaintiff had repeatedly violated Judge O’Hara’s orders and failed to provide adequate discovery.

The discovery violations continued on the part of the plaintiff, leading to the defendant to file two more motions for sanctions – on September 17 and on November 25.  On February 25, 2020, Judge O’Hara entered his Amended Report And Recommendation, which recommended that the Court dismiss plaintiff’s claims given her continued refusal to satisfy discovery requests and her repeated violations of orders to do so.  The plaintiff asked for additional time to object to Judge O’Hara’s report, was granted an extension, but still filed her objections four days late.

Judge’s Ruling

Judge Vratil began her analysis by stating: “To determine whether to order dismissal as a sanction, the Court considers the following factors: (1) the degree of actual prejudice to defendant; (2) the amount of interference with the judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for non-compliance; and (5) the efficacy of lesser sanctions. Ehrenhaus v. Reynolds, 965 F.2d 916, 920–21 (10th Cir. 1992).”

With regard to each of the factors, Judge Vratil stated:

• Prejudice To Defendant: “Plaintiff’s failure to satisfy discovery requirements or comply with several court orders has significantly prejudiced defendant. Specifically, plaintiff’s actions have forced defendant to devote considerable resources, including time, expense and attorney’s fees to a case that has progressed little since its inception.”
• Interference With Judicial Process: “Plaintiff’s conduct has led to a substantial amount of judicial intervention. Specifically, Judge O’Hara has had to repeatedly address plaintiff’s failure to satisfy discovery requirements and to comply with court orders, including convening a special status conference to discuss plaintiff’s missed deadlines and the allegations in defendant’s motions for sanctions.”
• Plaintiff’s Culpability: “Plaintiff asserts that she is not fully culpable for her discovery delays because between June 14 and August 29, 2019, defendant had the only hard copies of her discovery documents, and she could not adequately prepare and satisfy the discovery requirements without them…[but] plaintiff could have cured at least one of her discovery deficiencies without these documents, but did not do so.”
• Prior Warnings Of Dismissal: “Before entering his Amended Report And Recommendation, Judge O’Hara warned plaintiff three times that if she continued to delay discovery and violate court orders, he would recommend that the Court dismiss her claims.”
• Efficacy Of Lesser Sanctions: “Lesser sanctions have not deterred plaintiff from continuing to delay discovery and violate court orders.”

As a result, stating “all five factors weigh in favor of dismissal”, Judge Vratil agreed with and adopted Judge O’Hara’s Amended Report And Recommendation and dismissed plaintiff’s claims with prejudice.

So, what do you think?  Should a pro se plaintiff be given additional allowances?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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